Know Your Rights After Medical Malpractice

The law guarantees every person the right to decide what happens to his/her body. With the exception of certain limited situations, this right extends to patients seeking medical care. Whether it is a surgery, a test, a medication, or a therapy, the patient must be informed about the plan, and must consent (agree to) the treatment. If the patient is not given the proper information, the patient’s consent may not be valid. If the medical care results in harm, the patient may have a legal claim for “lack of informed consent”.

In Maryland (like many other states), a jury deciding a claim of lack of informed consent will be instructed as follows:

Before a physician provides medical treatment to a patient, the physician is required to explain the treatment to the patient and to warn of any material risks or dangers of the treatment, so that the patient can make an intelligent and informed decision about whether or not to go forward with the proposed treatment. This is known as the doctrine of informed consent.

In fulfilling the duty to disclose, the physician is required to reveal to the patient the nature of the ailment, the nature of the proposed treatment, the probability of success of the proposed treatment and any alternatives, and the material risks of unfortunate outcomes associated with such treatment.

A “material risk” is defined as “a risk which a physician knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to have the particular medical treatment or procedure.”

The physician’s duty to disclose material risks to the patient is based upon an objective standard rather than a subjective standard. This means that the question of whether a risk is a “material risk” is based upon whether a reasonable person in the position of the patient would have considered the risk to be a material risk. Whether the patient would have consented to the procedure, if informed of the risk, is a relevant factor to be considered, but is not conclusive.

The physician is not required to divulge all risks, but only those which are material to the intelligent decision of a reasonably prudent patient.

The most important goal of informed consent is to ensure the patient was an informed and voluntary participant in health care decisions. It is easy for patients to feel powerless and vulnerable in the face of illness and to be blindly trust the people taking care of them.

This “blind trust” does not excuse doctors from their duty to ensure patients participate in the decision-making process, not merely sign the consent forms placed in front of them. Informed consent discussions should be carried out in terms the patient can understand and the information should be adequate to allow the patient to make an intelligent choice.

The amount of information considered to be “adequate” varies by state. The three most common “standards” are:

  • Reasonable physician standard: what would a typical physician say about this intervention? This standard allows the physician to determine what information is appropriate to disclose. However, this standard is often inadequate, since most research shows that the typical physician tells the patient very little. This standard is also generally considered inconsistent with the goals of informed consent, as the focus is on the physician rather than on what the patient needs to know.
  • Reasonable patient standard: what would the average patient need to know in order to be an informed participant in the decision? This standard focuses on considering what a typical patient would need to know in order to understand the decision at hand. (Maryland uses a version of this Standard)
  • Subjective standard: what would this particular patient need to know and understand in order to make an informed decision? This standard is the most challenging to incorporate into practice, since it requires tailoring information to each patient.

What sorts of medical care requires informed consent?

All health care interventions require some kind of consent by the patient. In order to streamline this process, hospitals have patients fill out a general consent form when they are admitted or receive treatment. This allows the staff to provide routine care non-invasive care without going through the process of asking permission each time they interact with the patient. However, when an invasive test or therapy is recommended, the risks, benefits and alternatives of that test or therapy must be discussed with the patient and a separate consent must be obtained. If this is not done, and the patient suffers harm, he/she may have a claim for medical malpractice based on “lack of informed consent”.


  • If the patient does not have decision-making capacity a proxy, or surrogate decision-maker, must be found. Examples of this would be children, patients with dementia, or patients who are not conscious.
  • If there is an emergency, the patient lacks decision-making capacity,and waiting for an appropriate proxy could harm the patient, consent is not necessary.
  • A competent patient can designate a trusted loved-one to make treatment decisions for him or her. This usually requires legal documentation. In these situations, informed consent must then be obtained from the surrogate, but is not necessary from the patient.